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14 Dukeminier Awards: Best Sexual Orientation and Gender Identity Law Review 525 (2013)

handle is hein.journals/dukemini14 and id is 1 raw text is: Duke LawJournal VOLUME 63 DECEMBER 2013 NUMBER 3 INFERRING DESIRE JESSICA A. CLARKEt ABSTRACT In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results. This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual advances toward a woman discriminates on the basis of sex, courts presume, because he would not have made sexual advances toward another man. In 1998, the Supreme Court ruled that the same presumption is available in a case of same-sex harassment, i.e., a man harassing a man, if there is credible evidence that the harasser was homosexual. Since then, federal courts have decided 154 cases on whether a harasser was homosexual or experienced same-sex desire, often conflating the two questions. Copyright © 2013 Jessica A. Clarke. t Associate Professor, University of Minnesota Law School. This Article benefitted from the comments of Jennifer Drobac, Elizabeth Emens, Michele Goodwin, Melissa Hart, Jill Hasday, Brittney Miller, Rebecca Morrow, David Noll, Hari Osofsky, Jessica Roberts, Marc Spindelman, Charles Sullivan, and workshop participants at the University of Minnesota Law School, the 2013 Annual Meeting of the Association of American Law Schools, the 2012 Law & Society Conference, the Seton Hall Employment & Labor Law Scholars' Forum, and the Columbia Law School Associates' and Fellows' Workshop. I am grateful to Caitlinrose Fisher, Robin Lehninger, Michael Schubert, and the University of Minnesota Law Library for superb research assistance.

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